Pomona Municipal Code Div. 2 State Issued Video Franchises

(a) Under state law effective January 1, 2007, the California Public Utilities Commission ("PUC") possess the authority to grant state video franchises ("state franchises") pursuant to California Public Utilities Code section 5830(p). The City of Pomona (the "city") will acquire certain rights and responsibilities with respect to state video franchise holders, including the receipt of a franchise fee and a fee for public, educational and government ("PEG") purposes, both based on a percentage of the gross revenues of state franchise holders, as well as the establishment and enforcement of penalties for violations of customer service rules.

(b) Any notice that a state franchisee is required to provide to the city under Public Utilities Code section 5860(d) shall be delivered to the city manager.

(c) Nothing in this chapter is intended to limit or restrict in any way the imposition of any existing or future generally applicable, nondiscriminatory, competitively neutral tax, fee, or charge to a state franchisee city franchisee, or the services such franchisees provide.

(d) The city shall ensure PEG transmission, content, and programming provided by the city to a state franchisee is in a format compatible with the state franchisee's system. In the alternative, the transmissions, content, and programming may be provided in an industry standard format in accordance with Public Utilities Code section 5870(g)(1).

(Ord. No. 4111, § 2, 12-15-2008)

(a) Any holder of a state franchise ("state franchisee") operating within the boundaries of the city shall pay a fee to the city an amount equal to five percent of the gross revenue of that state franchisee.

(b) Any state franchisee operating within the boundaries of the city shall pay an additional fee to the city equal to one percent of the gross revenue of that state franchisee, which fee shall be used by the city for PEG purposes consistent with state and federal law. Any state franchisee that has held a city-issued franchise agreement shall, consistent with Public Utilities Code section 5870, continue to provide and support PEG channel facilities and institutional networks, and to provide cable services to city/community buildings to the maximum extent permitted by law. Such connections shall include existing connections to schools recognized under previously issued city-franchises. A state franchisee operating with in the city that utilizes the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least one PEG channel. Such PEG channel shall be for the exclusive use of the city or its designees to provide transmission of PEG programming. Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channel for the purpose of funding PEB-related activities. PEG access channel shall be carried on the basic service tier. To the extent feasible, the PEG access channel shall not be separated numerically from other channels carried on the basic service tier, and the channel number of the PEG access channel shall be the same channel number used by the incumbent cable operator, unless prohibited by federal law.

(c) "Gross revenue", for the purposes of (a) and (b) above, shall have the definition set forth in California Public Utilities Code § 5860.

(d) Commencing from, and after, the effective date of the ordinance [from which this subsection derives], the city's PEG Fee set forth in Ordinance No. 4111 shall continue to apply to any new or existing state franchisee operating in the city and shall automatically be reauthorized upon the expiration of any existing or future state video franchise(s) held by any state-franchised video service provider operating within the city. This section shall so renew until such time that the city council takes formal affirmative action to cease the renewals.

(Ord. No. 4111, § 2, 12-15-2008; Ord. No. 4245, § 3, 2-26-2018; Ord. No. 4246, § 2, 3-5-2018)

Not more than once annually, the city may examine and perform an audit of the business records of a state franchisee to ensure compliance with section 54-102.

(Ord. No. 4111, § 2, 12-15-2008)

(a) The holder of a state franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

(b) The city manager, or his/her designee, shall monitor the compliance of state franchisee(s) with respect to state and federal customer service and protection standards.

(c) The city manager, or his/her designee, shall provide the state franchisee(s) written notice of any material breaches of applicable customer service standards, and shall allow the state franchisee(s) 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period shall be subject to the following penalties by the city manager, or his/her designee.

(1) For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation.

(2) For the second violation of the same nature within 12 months, a fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.

(3) For each subsequent violation of the same nature within 12 months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation.

(d) A state franchisee may appeal a penalty assessed by the city council by providing to the city clerk written notice within 60 days of imposition of the penalty requesting a hearing. Such hearing shall be heard by the city council no more than 45 days after receipt of such notice by the city clerk. At such hearing, after relevant speakers are heard, and any necessary staff reports are submitted, the city council shall vote to either uphold or vacate the penalty. The city council's decision on the imposition of a penalty shall be final.

(Ord. No. 4111, § 2, 12-15-2008)

(a) Applicants for state franchises within the boundaries of the city shall concurrently provide complete copies to the city of any application or amendments to applications filed with the PUC. One complete copy must be provided to the city manager.

(b) The city manager shall provide any appropriate comments to the PUC regarding an application or an amendment to an application for a state franchise.

(Ord. No. 4111, § 2, 12-15-2008)

(a) Defense of litigation.

(1) State franchisee shall at the sole risk and expense of state franchisee, upon demand of the city, made by and through the city attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third person or duly constituted authorities, against or affecting the city, its elected officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise or the enjoyment of such state video franchise.

(2) State franchisee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against state franchisee, the city, its elected officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither state franchisee nor city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other.

(b) Insurance required. Upon being granted a state franchise, the state franchisee shall file with the city attorney and shall thereafter during the entire term of the installation and/or occupation in the public rights-of-way with any of state franchisee's equipment, the state franchisee shall maintain in full force and effect at its own cost and expense each of the following policies of insurance:

(1) General comprehensive liability insurance in the amount of one million dollars, together with bodily injury liability insurance in an amount not less than $1,000,000.00 for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than $500,000.00 on account of any one occurrence, and property damage liability insurance in an amount not less than $100,000.00 resulting from any one occurrence; provided, however, as follows:

(2) The city shall be named as an additional insured in any of such insurance policies; and

(3) Where such insurance is provided by a policy which also covers state franchisee or any other entity or person, it shall contain the standard cross-liability endorsement.

(Ord. No. 4111, § 2, 12-15-2008)

(a) State franchisee shall do the following:

(1) State franchisee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property unless and until first securing the written approval of the city manager.

(2) Whenever state franchisee shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the city shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the city, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to state franchisee, any such conduits or other facilities of state franchisee shall be constructed, installed, placed or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of the state franchisee, whose costs shall be determined as in the case of public utilities.

(b) The city shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled or maintained exclusively by or for state franchisee in any street; provided, such use by city does not interfere with the use by state franchisee.

(c) In those areas of the city where the transmission or distribution facilities of the respective public utilities providing telephone, communication and electric services are underground or hereafter are placed underground, the state franchisee likewise shall construct, operate and maintain all of his transmission and distribution facilities underground. The term "underground" shall include a partial underground system; provided that, upon obtaining the written approval of the city manager, equipment may be placed in appropriate housings upon the surface of the ground.

(d) The state franchisee at his or her expense shall protect, support, temporarily disconnect, relocate or remove any property of state franchisee when, in the opinion of the city manager the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements or governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground. The state franchisee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of state franchisee in place, as herein provided. Nothing hereunder shall be deemed a taking of the property of state franchisee, and state franchisee shall be entitled to no surcharge by reason of anything hereunder.

(e) Upon the failure, refusal, or neglect of state franchisee to cause any work or other act required by law or hereunder to be properly completed in, on, over, or under any street within any time prescribed therefore, or upon notice given, where no time is prescribed, the city manager may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to state franchisee an itemized statement of the costs thereof. The state franchisee shall, within thirty days after receipt of such statement, pay to the city the entire amount thereof.

(Ord. No. 4111, § 2, 12-15-2008)

It is the intent of the city council that this article not ever be construed so as to exempt a state franchise holder from compliance with all ordinance, rules or regulations of the city now in effect or which may be hereafter adopted where are consistent with this article or California Public Utilities Code section 5800 et seq.

(Ord. No. 4111, § 2, 12-15-2008)